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Terms and conditions and privacy policy

  1. Definitions and Interpretation 

    In this agreement, terms used in the Schedule have the meaning given to them in the Schedule and, unless the context otherwise requires:

    Australian Consumer Law means the provisions of Schedule 2 to the Competition and Consumer Act 2010 (Cth), as applied under Part XI or under a law of a State or Territory.

    Authorised User means the employees, agents and independent contractors of you who are authorised by you to be supplied Authorised User Logins and access and use Platform.

    Authorised User Logins means the unique username and password issued or otherwise assigned by us to you or your Authorised Users for access to and use of the Platform.

    Confidential Information of a party means the confidential, proprietary and commercially-sensitive information (irrespective of the form or the manner in which the information is disclosed, or the time of such disclosure) of that party (disclosingparty) which his disclosed to, or learnt by or accessed by the other party (receiving party), including information which:

        1. is identified by the disclosing party as confidential or the receiving party ought to have been known to be confidential; and
        2. relates to the business affairs and practices, including financial information, business opportunities, business plans, business processes and methodologies of the disclosing party,

    but does not include information:

        1. which is in, or comes into, the public domain other than by the receiving party’s breach of this agreement;
        2. which is independently known to, or developed by, the receiving party as evidenced by the receiving party’s written records; or 
        3. is or was made available to the receiving party by a person (other than the disclosing party) who is not, or was not, under an obligation of confidence to the disclosing party.

    Consequential Loss means any Loss that does not arise naturally in the ordinary course of things from the event or circumstance giving rise to the Loss.

    Dispute Notice means a notice issued by a party claiming a dispute has arisen, which is issued to the other party setting out the nature of the dispute and all other information relevant to the dispute.

    Fees means (where applicable) the Subscription Fees and/or the Support add-on and/or One-off add-one fees.

    Force Majeure Event means any act, event or cause including earthquakes, cyclones, floods, fires, lightening, storms or other acts of God, strikes or industrial disputes, riots, terrorist acts, civil disturbances, breakages of machinery, or industrial conditions, or arising out of any other unexpected and exceptional cause, delays in transportation and dispositions or orders of governmental authority, which:

        1. directly or indirectly results in a party being prevented from or delayed in performing any of its obligations under this agreement; and
        2. is beyond the reasonable control of that party.

    Further Term has the meaning given to that term in clause 3.

    GST has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999 (Cth). 

    Initial Term has the meaning given to that term in clause 3.

    Intellectual Property Rights means all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, confidential information, inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registered, registrable or patentable.

    Loss means any judgment, debt, damage, loss, cost, expense or liability howsoever arising and whether present or future, fixed or unascertained, actual or contingent whether at law, in equity, or otherwise.

    One-off add-ons means the one-off add-ons selected by you and set out in the Schedule. 

    Our IP has the meaning given to that term in clause 13.1

    Pre-Existing IP means any Intellectual Property Rights in any materials existing at the date of this agreement, including Intellectual Property Rights in software, hardware or documentation and materials used in our or your business.

    Privacy Act means the Privacy Act 1998 (Cth).

    Schedule means the schedule attached to these agreed terms, setting out the commercial details, including your Subscription type, any add-ons, and your fees. 

    Start Date means the date this agreement is signed by both parties. 

    Subscription means either your Annual or Monthly Subscription to access and use the Platform, including your Support add-ons if selected in the Schedule, in accordance with these agreed terms.

    Support add-ons means the support add-ons selected by you and set out in the Schedule. 

    Taxable Supply has the meaning given to that term in A New Tax System (Goods and Services Tax) Act1999 (Cth). 

    Term means the Initial Term and any Further Term. 

    Third Party Product has the meaning given to that term in clause 12.

    Third Party Supplier means a supplier who supplies Third Party Products (other than us).

    Update has the meaning given to that term in clause 9.

    Your Content means all any content, including text, data, logos, documents, imagery, videos or other files entered, uploaded or created by you or your Authorised Users while using the Platform.

    1. In this agreement unless the context otherwise requires:
      1. clause and subclause headings are for reference purposes only;
      2. the singular includes the plural and vice versa; 
      3. where a word or phrase is defined its other grammatical forms have a corresponding meaning;
      4. references to statutes include all statutes amending, consolidating or replacing such statutes;
      5. $ means the lawful currency of Australia;
      6. any reference to a party to this document includes its successors and permitted assigns;
      7. the use of the word "includes" or "including" is not to be taken as limiting the meaning of the words preceding it; and
      8. a reference to a clause or Schedule is a reference to a clause of, or a schedule of this agreement.
  2. Formation
    1. When you complete either:
      1. the Execution Acceptance; or
      2. the Check-Box Acceptance,

      an agreement is formed between you and How Too Pty Limited ACN 623 119 522 of Level 7, 33 Chandos Street, St Leonards NSW 2065 (we, us, our) consisting of the Schedule and these agreed terms (agreement).

    2. The agreement will be ongoing, until or unless your Subscription is cancelled or terminated in accordance with these agreed terms.
    3. To the extent of any inconsistency between the Schedule and these agreed terms, these agreed terms will prevail over the Schedule.
  3. Term and renewal
    1. Your Subscription and this agreement will commence on the Start Date and will continue for either:
      1. your Annual Subscription Term; or
      2. your Monthly Subscription Term,
    2. (Initial Term).
    3. If you have:
      1. an Annual Subscription, your Initial Term will automatically renew for further 12-month periods unless you cancel your Subscription in accordance with clause 4 or the agreement is otherwise terminated in accordance with these agreed terms; or
      2. a Monthly Subscription, your Initial Term will automatically renew for further 30-day periods unless you cancel your Subscription in accordance with clause 4 or the agreement is otherwise terminated in accordance with these agreed terms,
      3. (each additional 12-month period and/or monthly period (as applicable), a Further Term).

  4. Subscription cancellation and termination
    1. You are agreeing to having a Subscription on an auto-renewing basis for an indefinite period until cancelled by you or us as set out in this clause 4.
    2. You may cancel:
      1. your Subscription; or
      2. your Support add-ons only (where applicable)

      by giving us at least 7 days’ notice prior to your next Payment Cycle (Cancellation Cut-Off).

    3. If your cancellation request is for:
      1. your Subscription, and is received prior to the Cancellation Cut-Off, it will be effective at the end of your then current Term and the Platform and Support add-ons (if applicable) will remain accessible by you until the end of your then current Term that you have already paid the Fees for; or
      2. your Support add-ons only, and is received prior to the Cancellation Cut-Off, it will be effective at the end of your then current Term and the Support add-ons will remain accessible by you until the end of your then current Term that you have already paid the Support add-on Fees for.
    4. If your cancellation request is for:
      1. your Subscription, and is received after the Cancellation-Cut-Off, your payment of the Fees for your next Payment Cycle will be processed and your Subscription renewed for the next Further Term and your cancellation will take effect at the end of that Further Term and the Platform and the Support add-ons (if applicable) will remain accessible by you until the end of that Further Term that you have paid the Fees for.
      2. your Support add-ons only, and is received after the Cancellation-Cut-Off, your payment of the Fees for your next Payment Cycle will be processed and the Support Add-ons renewed along with your Subscription for the next Further Term and your cancellation will take effect at the end of that Further Term and the Support add-ons will remain accessible by you until the end of that Further Term that you have paid the Support add-on Fees for.
    5. We reserve the right to:
      1. cancel your Subscription at our reasonable discretion at any time and without giving any reasons for our decision. If we cancel your Subscription in accordance with this clause 4.5(a), your Subscription will cease effective from end of your then current Term, after which we will cease you will no longer be required to pay us any Fees (subject to clause 4.6).
      2. cancel your Support add-on at any time without giving any reasons for our decision. If we cancel your Support add-ons in accordance with this clause 4.5(b), your Support add-ons will cease effective from end of your then current Term, after which we will cease you will no longer be required to pay us any Support add-on Fees (subject to clause 4.7); or
    6. Upon the cancellation of your Subscription in accordance with clauses 4.2(a),4.3(a),4.4(a), and/or 4.5(a):
      1. this agreement will terminate in accordance with the applicable termination clause;
      2. you must download Your Content from the Platform prior to the end of your then current Term;
      3. we will deactivate your Authorised User Logins and your access to the Platform at the end of your then current Term;
      4. you must cease using the Platform at the end of your then current Term;
      5. you must pay to us all outstanding fees owed to us within 14 days; and
      6. each party must, on request, return or securely destroy all Confidential Information in that party’s control.
    7. Upon cancellation of your Support add-ons only in accordance with clauses 4.2(b), 4.3(b), 4.4(b), and/or 4.5(b):
      1. this agreement will terminate in accordance with the applicable termination clause insofar as it relates to your Support add-ons; and
      2. you must pay to us all outstanding fees owed to us within 14 days.
    8. Subject to clause 11.3, cancellation or refunds are not available for the One-off add-ons.
    9. If you, or any of your Authorised Users, fails to abide by these agreed terms, or your Fees are not paid on time, we reserve the right to suspend your access to the Platform and/or permanently cancel your Subscription.
    10. If we cancel your Subscription and withdraw access to the Platform because these agreed terms have been breached, in accordance with clause 4.9, your access to the Platform will be withdrawn immediately, no refund will be payable by us, and you must pay to us all outstanding fees owed to us as at the date of cancellation immediately.
    11. Provision of access to any of Your Content that you have not downloaded off the Platform as at the date of any cancellation or termination will be at our sole discretion.
  5. Fees
    1. You will pay your Fees each Payment Cycle in accordance the Payment Method selected in your Schedule and this clause 5.
    2. If you have:
      1. an Annual Subscription, your Fees will be payable annually advance; or
      2. a Monthly-Subscription, your Fees will be payable monthly in advance.
    3. If you purchase One-off add-ons, the One-off add-on Fees will be payable using your selected Payment Method as follows:
      1. where selected in the Schedule, upon payment of the first instalment of your Subscription Fees; or
      2. where you request them during your Subscription Term,
    4. Where your Payment Method is Direct Debit:
      1. your nominated debit or credit card will be charged when your Subscription first commences and then you will be charged on each relevant Payment Cycle without further authorisation from you, unless you have cancelled or otherwise modified your Subscription in accordance with these agreed terms.
      2. it is your responsibility to ensure your that:
        1. your Direct Debit details are, at all times, valid and up to date;
        2. sufficient funds are available at each Payment Cycle;
        3. the billing address and other necessary information you have provided are, at all times, valid and up to date.
      3. your Direct Debit transactions will be performed through payment gateways. We currently use the payment gateway owned and operated by Stripe Payments Australia Pty Ltd A.C.N. 160 180 343 for our online payment transactions.
      4. we do not correct or store your payment information, it is collected and stored by the owner of the payment gateway referred to in clause 5.4(c).
      5. payments will appear on your accounts as How Too Pty Limited.
      6. we are not liable for any charges you incur as a result of out of date payment information. If we incur an expense due to incorrect payment information provided by you, we reserve the right to seek reimbursement from you for such expense; and
      7. if we are unable to debit your Direct Debit Payment Method:
        1. you authorise us to reattempt the payment method a maximum of four times in a four-week period;
        2. if such reattempts are unsuccessful, we reserve the right to seek payment off you via an alternative payment method and/or seek to recover the debt through alternative means (either directly, or through a third party);
        3. you may be required to reimburse us for any costs we incur when reattempting payment; and
        4. we may suspend your account and access to the Platform until all overdue amounts are paid.
    5. Where your Payment Method is Invoice:
      1. we will invoice you for the Fees 30 days prior to your next Payment Cycle;
      2. you must pay Fees within 30 days of the date of invoice and in any case before your next Payment Cycle;
      3. if you wish to raise a genuine dispute about an invoice, you must notify us before the due date and pay the undisputed portion by the due date
      4. if you fail to pay an undisputed invoice by the due date, we reserve the right to charge interest on overdue amounts at the rate of 1.5% per month and/or suspend your account and access to the Platform until all overdue amounts are paid.
    6. On 30 days’ notice to you, we may increase the Fees for any reason during the Term, including as a result of an increase in fees charged by Third Party Suppliers. The increase will take effect on your next applicable Payment Cycle.
    7. Without limiting clause 5.6, the Fees may be increased each year by a percentage equal to the percentage increase in CPI for the same period. The increase will take effect on your next applicable Payment Cycle.
    8. Unless otherwise expressly stated, all fees, prices or other sums payable or consideration to be provided under this agreement are exclusive of GST. If GST is payable in relation to a Taxable Supply, the amount payable for that Taxable Supply is the amount for that Taxable Supply specified in this agreement plus GST.
  6. Licence
    1. We grant to you a non-transferrable, non-exclusive right and license to access and use the Platform for the duration of the Term in accordance with this agreement and the applicable Schedule.
    2. We will provide you with:
      1. your Subscription to access to the Platform; and
      2. the Authorised Users Logins.
  7. Accounts
    1. To access and use the Platform, your Authorised Users must set up an account using their allocated Authorised User Login.
    2. You are solely responsible for:
      1. ensuring each Authorised User Login is operated by only one person;
      2. ensuring Authorised Users do not share, publish or otherwise make available to any third party their Authorised User Logins;
      3. all activity on your account by you or any of your Authorised Users including any unauthorised access by third parties;
      4. maintaining the confidentiality and security of your account and the Authorised User Logins and notifying us immediately of any unauthorised use. You are also solely responsible for all activities on your account; and
      5. protecting Your Content, including backing-up, and ensuring the security of, Your Content, taking appropriate measures to protect Your Content from accidental, unlawful or unauthorised access, use or disclosure.
  8. Your obligations
    1. You must comply with, and ensure all Authorised Users comply with, all applicable laws, these agreed terms, and our reasonable directions.
    2. In order for us to provide you with access to the Platform, you must promptly provide us with (as reasonably requested by us) relevant, accurate, complete and current information.
    3. You must not:
      1. use, modify or adapt the Platform in any way that is contrary to this agreement or against any law (including for the purposes of infringing upon any third party Intellectual Property Rights);
      2. transfer, distribute or on-sell any copy of the Platform (or any derivative of them) to any third party;
      3. distribute viruses, corrupt files, or any other similar software or programs that may damage the operation of any computer hardware or software;
      4. copy, cache, reproduce, reverse assemble or reverse compile the Platform in whole or in part;
      5. do anything that would prejudice the existing right, title or interest in the Platform; or
      6. engage in any other conduct that inhibits any other person from using or enjoying the Platform.
    4. You must not submit, post or display any of Your Content that:
      1. you do not have permission, right or license to use, upload, and permit use as contemplated by this Agreement;
      2. is objectionable, offensive, unlawful, defamatory, deceptive or harmful; and/or
      3. is illegal, fraudulent, or manipulative.
    5. You warrant that you have the rights to use Your Content and you take full responsibility for Your Content. You indemnify us against any claims relating to a breach of any third-party rights and/or a breach of any law or regulation as a result of Your Contents claim.
    6. We may remove Your Content from the Platform if Your Content violates these agreed terms, including if Your Content or is offensive or otherwise unacceptable to us in our sole discretion and/or including in the event any claims, threatened, alleged or issued in relation to Your Content, and/or for any other reasonable cause.
  9. Updates and back-ups
    1. Where selected, we will provide the Support add-ons and/or One-off add-ons in accordance with the Schedule and as agreed with you from time to time.
    2. We will provide, configure, install and maintain any and all updates, upgrades, enhancements, releases, corrections, bug fixes, patches and modifications to the Platform as we deem necessary (Updates).
    3. We may suspend access to, or functionality on, the Platform from time to time to implement such Updates. We will use reasonable efforts to notify you of any Update that may interrupt the Platform
    4. You must accept all Updates necessary for the proper function and security of the Platform if and when such Updates are released by us.
    5. Whilst we reserve the right to undertake back-ups of the Platform, however we are not obligated to do so and you are solely responsible for backing up Your Content.
  10. Warranties

    Each party represents and warrants to the other that, to the best of its knowledge, each of the following statements is true, accurate and not misleading as at the date of this agreement and will be true and accurate on each day during the Term:

    1. it has the corporate power to enter into and perform its obligations under this agreement and to carry out the transactions contemplated by this agreement; and
    2. there are no pre-existing rights or obligations which would prevent it from complying with its obligations under this agreement.
  11. Limitation of liability
    1. You are solely responsible for determining whether the Platform is suitable for your needs.
    2. Subject to any express warranties in this agreement but otherwise to the fullest extent permitted by law, we exclude all warranties, conditions and representations in whatever form, relating to the Platform, including any warranties or representations relating to quality, accuracy, integration, merchantability, conformity with specifications, reliability, functionality, performance, fitness for use or the security and operation of the Platform.
    3. If any supply by us pursuant to this agreement comprises a supply to a ‘consumer’ as defined in the Australian Consumer Law, then nothing contained in this agreement restricts or modifies guarantee, right or remedy which pursuant to the Australian Consumer Law applies to this agreement or is conferred on you, provided that to the extent that the Australian Consumer Law permits the us to limit our liability for breach of guarantee imposed by the Australian Consumer Law, then to the extent permitted by the Australian Consumer Law, our liability for such breach is limited to:
      1. in the case of goods, any one or more of the following acts as determined by us:
        1. the replacement of the goods or the supply of equivalent goods; or
        2. the repair of the goods; or
        3. payment of the cost of replacing the goods or acquiring equivalent goods; or
        4. the payment of reasonable costs of having the goods repaired; or
      2. in the case of services any cost of the following as determined by us:
        1. the supplying of the services again; or
        2. the payment of the cost of having the services supplied again.
    4. Notwithstanding any other provision of this agreement and to the fullest extent permitted by law:
      1. our aggregate liability in connection with this agreement whether in contract, tort (including negligence), statute or otherwise will not exceed an amount equal to the fees paid by you to us in the 12 months preceding any claim;
      2. we are not liable, whether such liability is based on breach of contract, tort (including negligence), statute or otherwise for any Consequential Loss, indirect, incidental, punitive or special Losses of any kind (including loss of profit, business interruption or a security breach).
  12. Third party products

    We may use third party products and services in supplying you with access to the Platform (including incorporating such products and services into the Platform) (Third Party Product). You acknowledge that:

    1. your use of, and access to, the Third Party Products may be subject to additional fees and separate terms issued by the Third Party Supplier, which will form a separate agreement between you and the relevant Third Party Supplier;
    2. we make no representations or warranties in relation to, and do not accept liability for, any Third Party Products; and
    3. we may suspend your use of, or access to, the Third Party Products at any time, including on request from the Third Party Supplier of such Third Party Products.
  13. Intellectual property rights
    1. You acknowledge that the Intellectual Property Rights in the Platform (including any source code, translations, compilations, partial copies and derivative works) (Our IP) contain confidential and proprietary information belonging exclusively to us (or the Third Party Product supplier).
    2. Nothing in this agreement transfers ownership of any Pre-Existing IP to the other party or any other person.
    3. You own all Intellectual Property Rights in Your Content. You grant us a royalty-free, non-exclusive, revocable licence to use Your Content to the extent necessary to perform our obligations under this agreement.
    4. You consent to us naming you as a client and reproducing your business name and logos for marketing and publicity purposes.
    5. We grant you a non-exclusive and non-transferable licence to use Our IP solely to the extent necessary to obtain the benefit of the Platform for the Term
    6. You agree we may use, for our own business purposes, use and incorporate any ideas, suggestions, concepts, know-how or techniques contained in information received from you that directly relates to your products or business, including any suggested changes or modification to the Platform.
  14. Confidentiality and privacy
    1. Each party must comply with the Privacy Act in connection with the collection, use, handling, disclosure, quality, security of and access to personal information that the party holds.
    2. Both parties must keep all Confidential Information confidential and use such information for the sole purpose of performing the obligations under this agreement.
    3. Neither party may use or disclose the Confidential Information except:
      1. for the reasonable purposes of fulfilling the party’s obligations under this agreement or as otherwise permitted by this agreement;
      2. to that party’s employees or advisers on a need-to-know basis and that party must ensure that such persons understand and comply with the obligations imposed by this agreement;
      3. as required by law, subject to that party notifying the other party immediately if that party becomes aware that such disclosure may be required; or
      4. with the other party’s prior written consent.
  15. Security

    We do not represent or warrant that the Platform is entirely secure, uninterrupted or error-free. You acknowledge that the public internet is an inherently insecure environment and that we have no control over the privacy of any communications or the security of any data outside of our internal systems

  16. Force majeure

    If a Force Majeure Event occurs, the affected party must notify the other party and the obligations of the party will be suspended to the extent that they are affected by the relevant Force Majeure Event until that Force Majeure Event has ceased.

  17. Dispute resolution
    1. Any party who claims to have a dispute against another party must issue a Dispute Notice.
    2. Within 7 days after receiving the Dispute Notice, the parties must meet to resolve the dispute. Each party will be represented by a person having authority to agree to such resolution or methods. All aspects of the meetings will be confidential and without prejudice to the parties’ rights, obligations and liabilities.
    3. If the parties do not resolve the dispute within 30 days (or such longer period the parties may agree in writing) after the Dispute Notice, then either party may initiate court proceedings in relation to the dispute.
    4. Despite the existence of a dispute, each party must continue to perform its obligations under the agreement unless those obligations are the subject of the dispute.
  18. Notices
    1. A notice or other communication under this agreement is only effective if it is in writing and it is received in full and legible form at the addressee’s email address.
    2. You must send any notices or other communication to us under this agreement to info@howtoo.com.au.
    3. A notice will be deemed to be received the earlier of when the sender receives an automated message confirming delivery or within 24 hours after the message has been sent (as recorded on the device from which the sender sent the message), unless the sender receives an automated message that the email has not been delivered.
  19. General
    1. Nothing in this agreement will be taken as giving rise to a relationship of employment, agency, partnership or joint venture. Except as otherwise provided in this agreement, the parties acknowledge and agree that neither party will have any authority to bind the other party or to enter into an agreement in the name of the other party.
    2. We may sub-contract the performance of any part of our obligations and/or services to any third party.
    3. This agreement contains the entire understanding between the parties concerning the subject matter of the agreement and supersedes all prior communications.
    4. The failure of either party to enforce any provisions under this agreement will not waive the right of such party thereafter to enforce any such provisions.
    5. If any term or provision of this agreement is held by a court to be illegal, invalid or unenforceable under the applicable law, that term or provision will be severed from this agreement and the remaining terms and conditions will be unaffected.
    6. This agreement may be executed in any number of counterparts and all counterparts taken together will constitute one document.
    7. This agreement is governed by, and construed in accordance with, the laws of New South Wales, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of New South Wales.
    8. This agreement may not be amended or varied unless the amendment or variation is in writing and signed by all parties.
    9. Neither party may assign, transfer or otherwise deal with this agreement or any right under this agreement without the prior written consent of the other party, which must not be unreasonably withheld.
    10. Any warranty, indemnity, or obligation of confidentiality in this agreement will survive termination. Any other term which by its nature is intended to survive termination of this agreement survives termination of this agreement.